Department of Justice changes policy on recording – finally

For as long as I can remember, it has been the policy of the federal government to prohibit its agents from electronically recording interviews with criminal suspects in custody. Why on earth would they want to avoid having these interviews recorded? It’s simple, to avoid the truth. There is no other credible answer and no good argument against creating an accurate record of what goes on during these interrogations. At trial, federal agents have been coming into court and testifying under oath that defendants made incriminating statements which these suspects would often deny, resulting in a “he-said, she-said” swearing contest between the cops and the defendant. Guess who usually wins that one?

When asked to record these interviews, agents have vehemently resisted, claiming various reasons such as cost, privacy rights, and other flimsy excuses that really boil down to “We don’t want the truth revealed”. There is no other good reason. And ultimately, the United States Department of Justice has come to recognize that there in fact is no other reason other than “it benefits the defendant at trial”. Well, think about that. Why would it “benefit” the defendant at trial to have an accurate recording of what was actually said if the agents are telling the truth about what was said in the first place?

State courts have been far ahead in this trend and I often get audio or video recordings of my client interviews as part of discovery. What we’ve all learned from this practice is that it actually reduces unnecessary litigation over challenges to the integrity of the process, and gives everyone a more fair playing field. And with the cost of digital audio recorders being dirt cheap these days, there really isn’t any good excuse any longer to avoid taking this extra measure to assure accuracy.

According to unidentified sources talking to the press, the DOJ is currently circulating a memo (the “Cole Memo”) which instructs federal agents with the FBI, DEA and ATF to begin recording all custodial interviews with suspects in all but a few exceptional cases (of course, “National Security” is one of the enumerated exceptions). Field agents are largely opposed to this practice and it’s not surprising why. What is surprising is that the Department actually acted to implement a systemic change that gives the entire criminal investigative process a little more integrity. Good for them!

Defensology is aimed at general audiences interested in issues affecting the use of technology in criminal investigations and prosecutions. The perspective of the author is that of a criminal defense lawyer, without apology.

Defensology is maintained by Robert Perez, a criminal defense lawyer based in the Seattle area of Washington State. Robert is proud to defend liberty and freedom and restrict the ever growing reach of an intrusive government. Fight the Power.